Citation Nr: 9827853
Decision Date: 09/17/98 Archive Date: 09/25/98
DOCKET NO. 98-05 477 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for defective vision.
2. Entitlement to service connection for residuals of fever.
3. Entitlement to service connection for bilateral hearing
loss.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Eckart, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1943 to
February 1946.
This case comes before the Board of Veterans’ Appeals (Board)
from a rating decision of November 1997 from the Atlanta,
Georgia Regional Office (RO) of the Department of Veterans
Affairs (VA), which denied service connection for defective
vision, residuals of fever and bilateral hearing loss.
REMAND
The Board has a duty to assist the veteran in the development
of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.159 (1997). This duty to assist
involves obtaining relevant medical reports and examinations
where
indicated by the facts and circumstances of the individual
case. See Abernathy v. Principi, 3 Vet. App. 461 (1992);
Roberts v. Derwinski, 2 Vet. App. 387 (1992); Schafrath v.
Derwinski, 1 Vet. App. 589 (1991); Littke v. Derwinski, 1
Vet. App. 90 (1990); Murphy v. Derwinski, 1 Vet. App. 78
(1990).
The veteran contends, in essence, that he is entitled to
service connection for defective vision, residuals of a fever
and bilateral hearing loss. He specifically alleges that his
eye problems are the result of taking medication for malaria.
He further contends that he caught dengue fever or malaria
inservice, and continued to have symptoms, including fever
after his discharge. Finally, he contends that his hearing
loss disability is the result of inservice exposure to
acoustic trauma when someone fired a gun nearby him.
The Board notes that the RO’s repeated attempts to obtain
service medical records have thus far been unsuccessful. The
RO has attempted to secure these records through the National
Personnel Records on repeated occasions, in June 1997 and
January 1998. Unfortunately, without the service medical
records, it is not possible to verify the veteran’s
allegations that he was treated for a tropical fever such as
malaria or suffered acoustic trauma or had hearing problems
inservice. Although the correspondence indicates that his
records may have been destroyed by fire, it is unclear as to
whether these records have been destroyed or whether the RO
has exhausted all avenues in attempting to obtain them. Due
to the importance of such records in determining the final
outcome of this decision, the Board finds that the RO’s duty
to assist in this case, warrants a remand to attempt to
locate the veteran’s service medical records through
alternate means.
The Board does note that the veteran served in the
Philippines, earning a Philippine Liberation Medal. This
suggests the potential for exposure to tropical fever or
antimalarial agents. The veteran has submitted a physician’s
letter stating that the veteran’s current eye problems, which
include epiphora, disc coloration, thinning of scleras and
cataract formation, may be related to his inservice treatment
with Atabrine for antimalarial. On the occasion of his
videoconference hearing held in June 1998, the veteran
testified that he took Atabrine at a dosage of one pill a day
during the two years he spent in the Philippines. He also
testified that he was treated inservice for fever, and had
residuals of the fever following his discharge, but admitted
that the residuals eventually went away. He also testified
that he sustained acoustic trauma due to a gun fired at close
range.
The report from a July 1997 VA examination revealed findings
of bilateral hearing loss disability for VA purposes. See
38 C.F.R. § 3.385 (1997). The eye evaluation yielded
diagnoses of multiple eye problems. However, no evidence of
inservice causation regarding either disorder is currently
associated with the claims file.
In view of the foregoing, further appellate consideration
will be deferred and the case is REMANDED to the RO for the
following actions:
1. The RO should conduct a final attempt
to locate the veteran’s service medical
records. The RO should again contact the
NPRC, and if those records are again not
obtained, written notification should be
given concerning the negative results,
and upon notification of negative
results, the RO should exhaust all other
avenues, including the Department of
Defense records and any other records
repository. If alternative avenues fail
to locate the service medical records,
written notification should be given
concerning the negative results.
2. The RO should also attempt to obtain
any available Surgeon General’s Office
(SGO) records for this veteran. Again
documentation as to the efforts
undertaken, and the results should be
associated with the claims folder.
3. The RO should contact the veteran to
determine the names, addresses, and dates
of treatments of any and all medical care
providers who treated the veteran for any
eye disorder, hearing loss and residuals
of tropical fever, not already associated
with the claims file. After securing the
necessary release, the RO should obtain
these records. All pieces of
correspondence, as well as any medical or
treatment records obtained, should be
made a part of the claims folder. If
private treatment is reported and those
records are not obtained, the veteran and
his representative should be provided
with information concerning the negative
results and afforded an opportunity to
obtain the records. 38 C.F.R. § 3.159
(1997).
4. Upon completion of the foregoing, the
RO should review the veteran’s claims
seeking entitlement to service connection
for defective vision, residuals of a
fever and bilateral hearing loss. If the
RO finds that additional VA medical
examinations are necessary in order to
decide the claims, such examinations
should be scheduled and conducted.
5. If any determination remains adverse
to the veteran, he and his representative
should be furnished a supplemental
statement of the case which summarizes
the pertinent evidence, fully cites the
applicable legal provisions and reflects
detailed reasons and bases for the
decision reached. The veteran and his
representative should be given the
opportunity to respond thereto.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. The
purpose of this REMAND is to further develop the record and
the Board does not intimate any opinion, either factual or
legal, to the ultimate disposition warranted in this case.
No action is required of the veteran until he receives
further notice.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been
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remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
A. BRYANT
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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